Bradley Whitemore et al. v. Zoning Board of Appeals of the Town of Morris (2014)

MEMORANDUM OF DECISION

This is an appeal from a decision of the defendant, Zoning Board of Appeals of Town of Morris (“Board”), made on March 12, 2013 to sustain an appeal from an enforcement order issued by the Morris Zoning Enforcement Officer (“ZEO”).   The defendants, Julie M. Swan and Douglas S. Swan (“the Swans”), are the successful appellants before the Board.   The plaintiffs, Bradley Whittemore and Laura Whittemore (“the plaintiffs”), are next-door neighbors who have appealed that decision to this court.   The Swans have filed a motion to dismiss (# 120) this appeal on the ground that the court lacks subject matter jurisdiction.   The Board joins in this motion to dismiss.

The plaintiffs and the Swans own adjoining homes on a road known as Brunetto Grove in Morris.   The appeal involves a six by twelve-foot roof which overhangs a deck on the side of the Swans' home facing the plaintiffs' property.   The plaintiffs contend that the roof was constructed in violation of the Morris Zoning Regulations and must be removed.   On September 17, 2011 the ZEO issued a written “correct and abate order” to the Swans which states that there is a violation of the Morris Zoning Regulations on their property and that they are ordered to correct and abate it.   The parties agree that the violation referred to in the order is the roof which overhangs the deck.

The Swans appealed the “correct and abate order” to the Board.   Following a public hearing, the Board voted to dismiss the appeal and uphold the ZEO's issuance of the “correct and abate order.”   The Swans filed an appeal of this decision to the Superior Court, Judicial District of Litchfield, docket number 126006220.   During the course of preparing the record in that case, counsel for the Board discovered that there had been no notice published of the public hearing.   As a result, the Board filed a motion asking that the court dismiss the appeal and remand it to the Board for a new public hearing and a new decision.   The court granted that motion on November 1, 2012.

On January 22, 2013 the Board held a new public hearing.   On March 12, 2013 the Board voted to sustain the Swans' appeal, thereby terminating the ZEO's “correct and abate order.”   The plaintiffs filed the current appeal to this court in a timely fashion.   Although the issue of aggrievement is not before the court at this time, the defendants' motion to dismiss does not challenge the plaintiffs' aggrievement as adjoining property owners.  General Statutes § 8–8(j).

On September 24, 2013 the Board filed the record with the court.   The Swans obtained court approval to supplement the record to include additional records going back to June 2010 when they obtained a building permit and constructed the roof.   The return was supplemented on November 1, 2013 but it does not include many items that are referred to in the documents.¹

The Swans assert that the court has no subject matter jurisdiction to decide this appeal because the Board had no jurisdiction.   This is an unusual position to take.   The Swans took the appeal to the Board in order to challenge the ZEO's “correct and abate order.”   This is the proper way to challenge an order of a zoning enforcement officer.  General Statutes § 8–6.   The Board heard the matter and sustained the Swans' appeal.   If the court has no jurisdiction to hear this appeal from the Board, the Board's decision will stand without any right of appeal by anyone aggrieved by the decision.   This is not a logical result because if the Board had no jurisdiction to hear the Swans' appeal in the first place, the “correct and abate order” should stand.   Aggrieved parties have a statutory right to appeal from a decision of the zoning board of appeals.  General Statutes § 8–6.   Despite the illogic of the Swans' position, the court is obligated to proceed to determine the issue of subject matter jurisdiction.

Subject matter jurisdiction refers to the power of court to hear and determine cases of the general class to which the proceedings in question belong.   Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21 (2002).   Subject matter jurisdiction cannot be conferred on court by agreement or waiver.  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996).   Lack of subject matter jurisdiction can be raised at any time.  Waterbury v. Washington, 260 Conn. 506, 527 (2002).   Once raised, the court must consider and decide the issue of jurisdiction before proceeding further.  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6 (2003);  Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4 (1996).

The Swans' motion to dismiss has three grounds, all of which relate to a long complicated history which took place before the Swans' appeal to the Board from the order to correct and abate.   The Swans are apparently relying on the supplemental return to provide this history.   In essence, the Swan's argue that this prior history will demonstrate that they never needed a zoning permit to construct the roof but, despite that fact, they applied for and received a zoning permit from the Morris Planning & Zoning Commission which the plaintiffs did not appeal.   In opposition to that position, the plaintiffs argue that the prior history will demonstrate that they took a timely appeal to the Board from the issuance of a zoning permit and that the Board voted to sustain their appeal and revoke the zoning permit.   They argue that the Swans did not appeal that decision and are bound by it.

The court will not attempt to recite this tortuous history in full because the supplemental record is inadequate to supply it, and because the parties disagree as to the significance of that history.   The court believes that the facts relied upon to challenge jurisdiction are so intertwined with the merits of this case that it is not possible for this court to decide the jurisdictional question at this time.   The Supreme Court has recently provided guidance to the Superior Court when faced with such a dilemma:  “When the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.”  Conboy v. State, 292 Conn. 642, 653, note 16 (2009).   Here, the court will exercise its discretion to postpone resolution of the jurisdictional question until the trial on the merits.

The parties are ordered to confer to be sure that the record contains the entire history of this matter including every document included in all of the correspondence sent to the Board and to attempt to arrive at a stipulation of facts.   Once this process has been completed, the attorneys are directed to notify the case flow office to schedule this case for a status conference at which time a briefing schedule and a hearing date will be selected.

BY THE COURT,

John W. Pickard, J.

FOOTNOTES

FN1. For example, item # 54 in the supplemental return is a letter dated March 24, 2011 from the plaintiffs' attorney, Franklin Pilicy to the Board.   It lists twenty attachments, many of which are not in the supplemental return..  FN1. For example, item # 54 in the supplemental return is a letter dated March 24, 2011 from the plaintiffs' attorney, Franklin Pilicy to the Board.   It lists twenty attachments, many of which are not in the supplemental return.

Pickard, John W., J.